Opinion
14-P-233
11-17-2014
DONALD HAIG v. COMMERCE INSURANCE COMPANY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On August 17, 2006, plaintiff Donald Haig was injured when his car was involved in a collision with one owned by John Rothwell and operated by Amy Pellegrine. On March 7, 2008, Haig filed a complaint, which included negligence counts against Rothwell and Pellegrine, who were insured by Commerce Insurance Company (Commerce). A third count alleged that Commerce violated G. L. c. 176D and G. L. c. 93A by failing to make a reasonable offer of settlement after liability had become clear. On December 8, 2008, Haig accepted Commerce's offer of $400,000 (the policy limits) on behalf of Rothwell and Pelligrine, and the counts against them later were dismissed. At a two-day bench trial in 2012 on the remaining claims against Commerce, a Superior Court judge heard evidence from three of Commerce's employees who were involved with the plaintiff's claim, Haig, his wife, and experts retained by each side. Two exhibit books were entered in evidence.
Commerce was also the plaintiff's insurer.
On January 2, 2013, the judge ruled in Commerce's favor, and judgment entered the following day. The judge provided detailed findings and rulings to explain his reasoning. In the key passage, the judge concluded as follows:
"This court finds that Commerce did not fail to effectuate a prompt, fair, and equitable settlement of Haig's claims once liability had become reasonably clear. As discussed above, Commerce had experienced difficulties and delays in obtaining Haig's medical records. Commerce was concerned that Haig may have had a pre-existing medical condition, and it needed to review all of Haig's medical records before it could reasonably determine whether the August 17, 2006, accident had truly caused the injuries he suffered. Moreover, this case was complicated by the fact that Pellegrine initially claimed that Haig was at fault in the accident and had crossed into her lane."According to the judge, once the medical records showed that Haig's injuries were not the result of a pre-existing condition, and once Commerce's "counsel determined that Pellegrine was not a credible witness," Commerce soon thereafter offered the policy limits. See O'Leary-Alison v. Metropolitan Property & Cas. Ins. Co., 52 Mass. App. Ct. 214, 217 (2001) (an insurer's duty to settle arises when liability becomes reasonably clear as to both fault and damages).
On February 1, 2013, the plaintiff filed a motion for a new trial, which was denied on March 20, 2013. On April 4, 2013, the plaintiff filed an appeal "from the order . . . dated March 20, 2013."
We begin by noting the problematic nature of Haig's appeal. The one notice of appeal before us references only the judge's denial of the motion for new trial. Yet, Haig has not argued --much less shown -- how the judge abused his discretion in denying that motion. See generally Gath v. M/A-Com., Inc., 440 Mass. 482, 492 (2003) ("We grant considerable deference to a judge's disposition of a motion for a new trial, especially where he was the trial judge, and we will reverse the ruling only for an abuse of discretion"). In fact, Haig has not even included his motion for a new trial or the judge's order on that motion in the record appendix.
Rather, Haig's brief treats his appeal as if it were one of the judgment entered on January 3, 2013, despite the fact that no notice of appeal was filed as to that judgment. Even if the current appeal were treated as an appeal of the judgment, Haig's record appendix would remain seriously deficient. See Chockel v. Genzyme Corp., 449 Mass. 272, 279 (2007) ("An appellate court is not required to look beyond [the] appendix to consider the missing document[s]"). Missing from that appendix are all of the exhibits, including several that are critical to evaluating Haig's assertions that the judge committed clear error in finding the facts. These include Commerce's file, Commerce's correspondence with Haig's counsel (including the letters sent pursuant to c. 93A), Haig's medical records, and various deposition transcripts.
Had Haig filed a notice of appeal as to the judgment on April 4, 2013, it is not clear such a notice would have been timely. A notice of appeal ordinarily must be filed within thirty days of entry of the judgment or order being appealed. Mass.R.A.P. 4(a), as amended, 430 Mass. 1603 (1999). Although a timely filed motion for new trial can toll the running of the appeal period, it is not clear on this record that such a prerequisite was met here.
In any event, Haig's appeal fails on the merits. To be sure, Commerce's response to Haig's demands can hardly be held out as exemplary conduct by an insurer. This allowed Haig to forge nontrivial arguments that Commerce violated its statutory obligations. However, such arguments were for the trial judge, as fact finder, to consider. Based on the limited record before us, we conclude that the judge did not err in deciding that liability was not reasonably clear until soon before Commerce's offering the policy limits, and that he did not abuse his discretion in denying Haig's motion for a new trial.
Haig argues that liability was reasonably clear at a much earlier time. Haig does not argue, and we therefore do not consider, whether Commerce made a reasonable settlement offer promptly after the date that -- according to the judge --liability was first reasonably clear.
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Trainor & Milkey, JJ.), Clerk Entered: November 17, 2014.
Panel members appear in order of seniority.
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